IJK 39 
S65 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 

AND ITS EFFEa ON INTERNATIONAL 

RELATIONS 



BY 



ALPHEUS HENRY SNOW 



BEPBINTED FROM 
THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

APRIL, 1914 






/:>^' ^^ 



THE AMERICAN PHILOSOPHY OF GOVERNMENT AND ITS 
EFFECT ON INTERNATIONAL RELATIONS 

Until quite recent times, it would have been unprofitable, in the case of 
most nations, to inquire what the philosophy of government held by the 
people was, or what effect it had on the foreign relations of the nation, or 
on international relations generally. There were few nations in which 
the people were so enlightened and expressed themselves so fully that it 
was possible to distinguish and define the particular philosophy of 
government held by them; and even if it had been possible to do so, it 
would have been of little use to try to discover what effect this philosophy 
had on international relations, since the fact was that it had little or no 
effect. The people of each nation, ignorant of foreign affairs by reason 
of the difficulties of travel and communication, allowed the executive to 
control the foreign relations under the advice of a council in the selection 
of which they had no voice, and representing certain privileged classes of 
persons who used the power of the nation as means to accomplish such 
ends as they thought desirable. 

So long as this condition of thmgs was general, the rights of nations 
occupied the attention of writers. The rights of man, the rights of 
peoples, and the rights of society in general were ignored, as were the 
responsibilities which necessarily accompany all rights. Each nation 
sought to aggrandize itself by conquering and pillaging others, and the 
only restraint on one nation trespassing upon another was that all the 
so-called civilized nations were gradually forced, by the pressure of 
circumstances, to enter into the playing of a military game of forcible 
checks and balances, called "the balance of power" or "the political 
equilibrium." 

The principle of this game was very simple, though, like most other 
games, the rules for playing it were very intricate. When any nation, 
for the purpose of direct gain by pillage of its neighbors or by despoilment 
of the natives of barbarous regions, or for the purpose of indirect gain by 

191 



192 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

destroying its competitors in trade or opening up new trading points, 
desired to conquer adjacent or distant regions, — thereby increasing its 
military and naval strength and paving the way for further expansion, — ■ 
the surrounding nations combined their military and naval strength by 
alliances until the proposed expansion was balanced and checked, or 
until the opposing nations, or all the nations concerned, were "com- 
pensated" by partitioning between them some weak country which had 
been crushed in the course of the war. Thus what was called the status 
quo or the "political equilibrium" was maintained. 

So long as the people of each nation remained unenlightened and 
were without full power to express their ideas through representative 
institutions, the war-game of "the balance of power" ruled international 
politics, and international disputes were disputes concerning the "rights 
of nations," and particularly on points of "national honor." The 
citizens of each nation had only partial and indefinite rights at home, and 
citizens of one nation had no rights in another nation or against a foreign 
government. A person abroad had only certain privileges, and these 
usually were based on treaty. Breaches of treaty were considered to 
involve the national honor not of the nation breaking the treaty, but of 
the other nation, and led to war or to a new disposition of alliances 
according to the rules of the war-game. 

As the people became more enlightened, and obtained an increasing 
participation in their own government by representation and by com- 
pelling their governments to be responsible to them, there gradually 
arose in each nation a popular philosophy of government, in which the 
rights of individuals, of peoples, and of human society in general, were 
distinguished from the rights of nations. \ The houses of representative 
legislatures, and particularly the houses directly representing the people 
of the nation, as their members became increasingly better informed 
concerning foreign affairs through increased facilities for travel and 
intercourse, insisted with greater and greater force that the philosophy 
held by the people should have its effect upon foreign relations as well 
as upon domestic affairs. The war-game of the balance of power every- 
where came under criticism. At the present time its principles are 
beginning to be known, and there is a growing understanding of its 
intricate rules. The classes and interests which have heretofore had the 



Gift 

American Fiietorical Review 

FEB 2 6 1925 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 193 

monopoly of this knowledge, and which in all sorts of secret ways were 
able to use the nation and determine its moves, are being haled into the 
daylight and exposed to the destructive power of publicity. Indeed 
the danger at the present time is, that in the control by the people of 
each nation over national and international affairs, the just rights of 
nations to live and protect themselves, and to be the guardians of the 
rights of individuals, of peoples and of society at large, will be ignored, 
and that the whole structure of organized society will be weakened, to 
the detriment of individual liberty. 

It becomes, therefore, important to consider the philosophy of govern- 
ment held by the people of each nation-, and particularly of those which 
have advanced farthest along the path of popular government, for the 
purpose of ascertaining how this philosophy is likely to affect inter- 
national relations. It is particularly desirable to consider the philos- 
ophy held by the people of the United States, and extended to its an- 
nexed countries, since this is one of the two great philosophies of popular 
government now prevailing in the world; the other being that held by 
the people of Great Britain, which has extended more or less completely 
to the self-governing states of the British Empire, and to the nations of 
the Continent of Europe. 

Every philosophy of popular government tends to the establishment 
and enlargement of the rights of the individual. When we speak of 
"pMDpular rights," we mean the rights of the individual. It is true we 
may speak of the rights of one people against another, or the rights of 
society against peoples, but these are figurative expressions. They all 
come down, in the last analysis, to the rights of the individual. The 
important thing, therefore, in examining a philosophy of government 
held by the people of a nation is, to reach a definite idea concerning what 
the rights of the individual are under this philosophy, into what classes 
and grades they are divided, how they are considered to arise, whether 
they are considered to be against the government or agauist all govern- 
ments as well as against other individuals, and how it is considered they 
ought to be safeguarded. 

The crux of the whole matter is, however, whether the individual, 
according to the philosophy of government held by the people of the 
nation has rights against the government, and, if so, why and to what 



194 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

extent? It is particularly important to inquire whether they base the 
rights of the individual against the government on grounds which 
logically require them to hold that all individuals have rights against all 
governments. If the people of a nation do hold that there are rights of 
individuals against governments, and particularly if they hold this 
idea for reasons which, logically followed out, require them to hold that 
all individuals have rights against all governments, this philosophy is 
bound to have an effect upon international relations. 

There can be no doubt but that the proposition that there are certain 
rights of the individual against the government does forin the most 
fundamental part of the American philosophy of government. We are 
accustomed to see every branch of our government carefully scrutinizing 
every governmental action lest it may be found to infringe certain rights 
of the individual. Every governmental agency, from the Congress and 
the President downwards throughout the United States, and from the 
Legislature and Governor downwards throughout the States, is bound by 
certain express constitutional prohibitions which are designed for the 
protection of these rights, and if these constitutional prohibitions are 
infringed by governmental action, the action is nullified by the Supreme 
Court of the United States or by the court of final jurisdiction in the 
State. Thus the conception that there are certain rights of the individual 
against governments, which no government can infringe except upon 
penalty of having its act nullified, is a very living one among the people 
of the United States. 

If the people of the United States held that these rights were merely 
rights which they thought it expedient for their citizens to have, their 
citizens would have these rights merely as citizens. Such a doctrine 
would make little difference to the rest of the world. Any rights which 
we think it merely expedient that our citizens should have at home are of 
course of little effect abroad. But we do not base our belief in these 
rights of the individual against the government upon any grounds of 
national expediency. We assert that every citizen of the United States 
has certain rights against all other persons and against all governments, 
because these rights arise out of the necessities of human nature and 
because it is essential to human society that every individual should 
have these rights. We say that these are "fundamental rights" and 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 195 

are not only universal but are " unalienable "—that is, that persons can- 
not convey them to governments and thereby give governments abso- 
lute power over them. This makes our philosophy international, as 
well as national. Our people and all who dwell in our midst or under 
our jurisdiction, have fundamental rights against our governments not 
merely as citizens of the United States, or as under its protection or 
jurisdiction, but as human beings living in the society of other human 
beings. These fundamental rights, according to our philosophy, must 
therefore arise under a law growing out of the necessities of human 
nature, which is supreme over the United States and over all individuals, 
peoples and nations, and which arises from the act of a legislator external 
to the United States. 

What then, are these fundamental rights which thus arise under a 
law made by the legislative act of a power external to and supreme over 
the United States, and what is this external and supreme law under 
which we consider these rights to exist? 

The Declaration of Independence contains the only affirmative state- 
ment concerning these fundamental rights and this external and supreme 
law. In the preamble, it is said: "We hold these truths to be self- 
evident: That all men are created equal; that they are endowed by their 
Creator with certain unalienable rights, that among these are life, 
liberty and the pursuit of happiness; that to secure these rights, govern- 
ments are instituted among men, deriving their just powers from the 
consent of the governed." Thus the Declaration divides all rights of 
individuals into two classes. In the first class are certain unalienable 
rights with which each man is endowed by his Creator, and among 
which are the rights of life, liberty and the pursuit of happiness; in the 
second class are all other rights. This first class the Supreme Court of 
the United States calls ''fundamental rights"; the second class it calls 
"artificial or remedial rights," since the rights of the second class must 
be consistent with and in aid of those of the first class. The fundamental 
rights are ''recognized, but not created, by the Constitution" ^— that 
is to say, by the people of the United States, through the Constitution. 
The artificial or remedial rights are created by the people or the govern- 
ment of the United States or by the peoples or the governments of the 
1 Logan V. United States, 144 U. S. 263, 293. 



196 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

States. The Supreme Court says of these rights that they are "pecuhar 
to our own system of jurisprudence": ^ thus distinguishing them from 
fundamental rights, which are of course, in our view, common to every 
system of jurisprudence, including the international system. 

The definition of the fundamental rights of the individual as including 
his rights of ''life, liberty and the pursuit of happiness," given in the 
Declaration, is too indefinite for practical use. When, however, we go 
back to the literature of the Revolutionary period and use it as a con- 
temporary exposition of the meaning of these words, the definition be- 
comes clear and practical. The fundamental or common rights are those 
corresponding to the common attributes which all men have as a neces- 
sary part of their human nature and as essential to the existence of hu- 
man society. These attributes are life, the power to move and the 
power to use lands, things and forces in the pursuit of happiness. Inas- 
much as these common attributes with which all are equally endowed by 
and at their creation give rise to common necessities, it follows, as we 
believe, that there must be a supreme and fundamental law of human 
society recognizing these common attributes and these common neces- 
sities and conferring rights upon each individual to satisfy his neces- 
sities. The fundamental rights of the individual may thus be stated to 
be the right to so live, to so move and to use such part of the land, things 
and physical forces of the universe for his support and happiness, as is 
consistent with the common and equal right of every other individual 
to such life, to such motion, and to the use of lands, things and forces for 
the same purpose. Though these fundamental rights cannot be alienated 
by any individual to any person or government, the individual may of 
course forfeit them to society for anti-human and anti-social acts done 
by him, and it is the function of governments, subject to the ultimate 
superintendence of the people of each nation, to adjudicate the total or 
partial forfeiture of these rights by due process of law and to enforce 
forfeitures so adjudicated. The right of an individual to use exclusively 
lands, things or forces, which we call property, is evidently to some ex- 
tent a fundamental right and to some extent an artificial right. Thus the 
Declaration does not regard property as a fundamental right. On 
account, however, of the difficulty of determining the extent of property 
2 Downes v. BidweU, 182 U. S. 244, 282. 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 197 

which the individual may own as a matter of fundamental right, we 
protect all the property which an individual owns, equally with his life 
and liberty, so as to prevent it from being taken from him "without due 
process of law, "-thus requiring proper legislative action, proper 
judicial determination and proper executive action as a precedent to the 

forfeiture. , ^ , . j- -j i 

The nations which recognize the fundamental rights of the individual 
have various expedients for safeguarding them. These rights may 
evidently be infringed by individuals or by governments. The courts m 
every civilized country are the especial guardians of fundamental nghts 
in so far as the customary law is concerned. Com-ts everywhere refuse to 
apply customs as rules of law when the customs are contrary to funda- 
mental rights. But when the legislature has enacted a law, the courts ot 
most nations are powerless to consider whether it infringes the funda- 
mental rights of the individual. Thus, in most nations, the individual 
has no rights against the government, or at least against the legislative 
branch. Experience has shown, however, that each individual has quite 
as much to fear from the action of governments-even from the popular 
legislatures-in infringmg his fmidamental rights as from other indi- 
viduals. A govermnent, or the legislative part of it, is, after all, only a 
group of individuals, and it may, Uke any other group of individuals, 
violate the fundamental rights of individuals. Even if the government is 
directly responsible to the will of the majority of the electors the ma- 
jority may compel the government to violate the fundamental rights of 
the individual miless some way is found for nullifying such govern- 
mental acts even though commanded by the majority. The British 
system of responsible govermnent recognizes the fmidamental rights of 
the individual, but gives no protection to the individual against mf ringe- 
ment of his rights by the govermnent except by concentrating respon- 
sibility in a small committee called the Cabinet, and making the tenure of 
office of the Cabinet depend upon its having a majority in the popular 
House The theory is that if the Cabinet attempts to mduce any 
branch of the govermnent to infringe the fundamental rights of the 
individual, or sanction such an infringement, it will lose its majority and 
go out of ;ower, to be supplanted by a Cabinet which will see that these 
rights are protected. 



198 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

The people of the United States have adopted a different method of 
protecting these fundamental rights. In the Constitution of the United 
States, and in the State Constitutions, are inserted prohibitions upon 
certain forms of governmental action foimd by experience to be likely to 
occur if not prohibited, and which endanger or destroy the fundamental 
rights of the individual. These prohibitions are the most fundamental 
parts of the Constitution, and no governmental powers can be exercised 
contrary to them. That is to say, they are supreme over all the rest of 
the Constitution and over all governmental action which the particular 
Constitution affects. The Supreme Court of the United States has 
said — to repeat what has been above quoted with its immediate con- 
text — that there are "certain fundamental rights, recognized and de- 
clared, but not granted or created by the Constitution, and thereby 
guaranteed against violation or infringement by the United States, or 
by the States, as the case may be." ^ The following is a collation of the 
provisions of the Constitution of the United States, prohibiting certain 
kinds of governmental action by the Government of the United States 
for the protection of fundamental rights, which has received the ap- 
proval of the Supreme Court. ^ 

That no person shall be deprived of life, liberty or property, without 
due process of law; that private property shall not be taken for public 
use without just compensation; that in all criminal prosecutions the 
accused shall enjoy the right to a speedy and public trial, to be informed 
of the nature and cause of the accusation, to be confronted with the 
witnesses against him, to have compulsory process for obtaining wit- 
nesses in his favor, and to have the assistance of counsel for his defense; 

3 Logan V. United States, 144 U. S. 263, 293. 

* This collation was made in the Instructions of the President to the Commission 
for taking over the Civil Government of the Phihppines from the Military Authori- 
ties, dated April 7, 1900, and is quoted in Kepner v. United States, 196 U. S. 100, 123. 
In those instructions it was declared that "there are certain great principles of 
government which have been made the basis of our governmental system, which we 
deem essential to the rule of law and the maintenance of individual freedom," and 
that "there are certain practical rules of government which we have found to be 
essential to the preservation of these great principles of liberty and law." The above 
quoted constitutional prohibitions were spoken of as the "rules of government" 
which are "inviolable." See further on this subject an article on "The American 
Philosophy of Government and its Application to the Annexed Countries," by the 
author of this article, in the Proceedings of the American Political Science Association 
for 1913, Vol. 10, p. 76. 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 199 

that excessive bail shall not be required, nor excessive fines imposed, nor 
cruel or unusual punishment inflicted; that no person shall be put twice 
in jeopardy for the same offense, or be compelled in any criminal case to 
be a witness against himself; that the right to be secure against un- 
reasonable searches and seizures shall not be violated; that neither 
slavery nor involuntary servitude shall exist except as a punishment for 
crime; that no bill of attainder or ex post facto law shall be passed; that no 
law shall be passed abridging the freedom of speech or of the press or the 
rights of the people to peaceably assemble and petition the government 
for a redress of grievances; that no law shall be made respecting an 
establishment of religion or prohibiting the free exercise thereof, and 
that the free exercise and enjoyment of religious profession and worship 
without discrimination or preference shall forever be allowed. 

The Supreme Court has said of this collation of Constitutional pro- 
hibitions: ^ 

These words are not strange to the American lawyer or to the student 
of Constitutional history. They are the familiar language of the Bill of 
Rights, slightly changed in form, as found in the nine amendments to 
the Constitution of the United States, with the omission of the provision 
preserving the right of trial by jury and the right of the people to bear 
arms, and adding the prohibition of the thirteenth amendment against 
slavery or involuntary servitude except as a punishment for crime, and 
that of Art. 1, § 9, to the passage of bills of attainder and ex post facto 
laws. These principles * * * were carefully collated from our own 
Constitution, and embody almost verbatim the safeguards of that in- 
strument for the protection of life and liberty. 

The Supreme Court has itself definitively attached to the rights 
secured by these Constitutional prohibitions the name of "fundamental 
rights." ^ 

Substantially these same Constitutional prohibitions against govern- 
mental action are inserted in the Constitutions of the various States of 
the Union. Through the interpretation and application of these pro- 
hibitions of the Constitutional Bill of Rights, made by the Supreme 
Court of the United States as respects governmental action of the 
United States, and by the courts of final jurisdiction in the States as 
respects governmental action of the States, the principles of this supreme 
universal law under which the fundamental rights of the individual 

5 Kepner v. United States, 195 U. S. 100, 122, 123. 

« Hawaii v. Mankichi, 190 U. S. 197, 217; Kepner v. United States, 195 U. S. 100, 
123; Dorr v. United States, 195 U. S. 138, 144, 148. 



200 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

exist, are being gradually evolved by a process of exclusion and inclusion. 
Of course the courts cannot be allowed to have absolute finality in 
making decisions of such great importance, which involve the inter- 
pretation and application of a law which is supreme over the people of 
every nation and over every nation, and the nullification of acts of 
popular legislatures. Where decisions made by courts are believed by 
the people of the nation to have been based on a wrong interpretation or 
application of these fundamental constitutional prohibitions — that is, on 
a wrong interpretation and application of this supreme universal law — 
the people of each State or of the nation may and doubtless ought to 
arrange for some appropriate process of revision, but every revisionary 
process must be so arranged and safeguarded that it will be most likely to 
result in the fundamental rights of the individual being secured to him. 
The practice of intrusting the courts of final jurisdiction with this great 
function is on the whole satisfactory to the people of the United States, 
since if the courts err they may also correct themselves in later deci- 
sions; and the theoretical right of the people to provide a revisionary 
tribunal or process or to exercise direct revisionary power, is not likely 
often to be insisted upon. There is great danger to the fundamental 
rights of the individual in revisionary action by direct popular vote, or 
even by a special tribunal or a special form of legislative action. The 
people of the United States are fully alive to these dangers, and there 
seems to be every probability that our system will never be essentially 
changed, and that such changes as are made will be for the purpose of 
rendering it more perfect. 

It follows from the American philosophy of government that we 
regard all our organized communities — even the United States and the 
States — as corporations. The citizens of the State or of the nation 
are the members of the corporation, and the government is a governing 
agency or governing board. The object of all government, as we view it, 
is to secure the fundamental rights of the individual, and the powers of 
governments are limited to this purpose. Every organized community 
is, by virtue of the fact that it is a corporation, democratic and represent- 
ative. Corporations may of course form themselves into a corporation 
and frequently do so when the operations are widely extended — the 
greater corporation so created being given superintending power for the 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 201 

general purposes. We apply this same idea, and our States as corpora- 
tions have formed themselves into a federal corporation or federal nation. 
Thus the American philosophy of government necessarily results in 
democratic, representative and federal institutions. 

The fact that some of the peoples of the world are beginning to hold a 
philosophy of government which distinguishes between fundamental 
rights and artificial rights, has already had a profound effect upon inter- 
national relations and is likely to have still greater effects; for out of the 
acceptance of the belief in fundamental rights grows the belief in the 
rights of individuals against governments, and of the propriety and 
necessity of constitutional prohibitions imposed by peoples or by society 
at large upon governments, for the protection of these rights. The 
individual thus becomes a subject of the public international law, as 
well as the nations. The old theory that international law, or the law of 
nations, was concerned solely with the rights of nations is already 
modified. We look at the real parties in interest, and discover that in an 
increasing number of cases an individual or a group or class of indi- 
viduals is the real party on one side and a nation as a corporation the 
real party on the other. Individuals who are sojourning in a foreign 
nation often come into direct conflict with the government of the nation; 
and individual citizens of one nation frequently make contracts with a 
foreign nation. Thus the question arises in various ways, what rights 
have citizens of one nation against another nation? 

Some European writers on public international law have already 

noticed the change which is taking place in the views held concerning 

the subjects of international law growing out of the increasing belief 

in the fundamental rights of the individual— the rights of man, as the 

French call them. Thus in the Manual de Droit International Public, 

by Bonfils, revised by Fauchille,^ it is said : 

The nations, considered as members of the international community, 
are par exceWe/ice international persons. * * * But are they the only 
international persons? Yes, if one uses the expression "international 
persons" as synonymous with and equivalent to "members of the 
international community." But if, giving another meaning to this 
expression, one designates by the term "international persons' all the 
beings whose juridical situation is regulated by the public international 

7 6th Ed. 1912, Pars. 154, 157. 



202 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

law, whose rights and duties are determined and whose privileges are 
restricted by this law, as subjects of this branch of the law, the nations 
are not the only international persons. 

Speaking of the individual man as one of the subjects of the public 
international law, these authors say : 

Man, as a member of humanity, has an individuality of his own, says 
Pasquale Fiore, a sphere of action which may include all the regions of 
the globe, a juridical capacity belonging to him by reason of his mere 
existence and independent of that which may be recognized as pertaining 
to him as a citizen of a nation. * * * Heffter classes among the im- 
mediate subjects of international law man considered by himself, and 
the citizens of a nation in their relations with other nations. He develops 
his thesis by examining the primordial rights of man, of which the idea of 
personal liberty is the foundation, and which are not to be confounded 
with political or civil rights. * * * 

Undoubtedly the individual man is not an international person of the 
same kind as the nations. Among other differences, there is one which is 
very marked: From the point of view of international law, the nation has 
a simple character, in that it is and can be subject only to international 
law. The individual man, however, has a composite and mixed charac- 
ter, in that he is, at one and the same time, subject to international law, 
and to the particular law, public and private, of his own nation. These 
two qualities exercise on each other a reflex influence. To refuse to 
regard the individual man as an individual person, is to sacrifice the 
first to the second. 

Has not every man certain fundamental rights? Without regard to the 
nationality of the individual, are not the inviolability of the human 
person as against the slave trade, the security of private property as 
against piracy, now placed under the protection of international law? 

These same writers have this to say regarding the rights of individuals, 
as citizens of a nation, against another nation: 

Moreover, each individual, however isolated, has everywhere, as a 
native of a particular nation or as under its jurisdiction, certain rights 
based on the principles of international law. The violation of these 
rights is an injury, not only to the individual, but to the nation of which 
he is a citizen. The subject of the rights of the native inhabitants against 
a foreign conqueror, of the rights of foreigners to enjoy special rights 
against uncivilized natives, the subject of naturalization, and of emi- 
gration, fall within the jurisdiction, in varying degrees, both of interna- 
tional law and of national law. Do not disputes and conflicts arise 
between nations regarding emigration and naturalization? Is not the 
matter of the extradition of criminals, though it so profoundly concerns 
the individuals charged with crime, essentially a matter of public inter- 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 



203 



r-ational law? In these cases, and in many others, the citizen of a nation 
finds himself in contact, in relationship or in conflict, not with the sub- 
jects of another nation, but with the nation itself. It is as respects this 
nation, as an international person, that the relationship must be deter- 
mined, or the dispute settled. This relationship or this dispute is of an 
international kind and is subject to be determined by international law, 
just as analogous relationships or disputes arising between a nation and 
one of its own citizens are determined by the national law. 

It is important to distinguish, as these writers do, between the claims 
of individuals against a foreign government based on violation by the 
foreign government of the fundamental rights of the individual and the 
claims of individuals against a foreign government based on violation by 
the foreign government of the rights which the individual has as a 
citizen of his own nation. The Constitution of the United States dis- 
tinguishes between the two classes of cases. The Supreme Court of the 
United States has jurisdiction of all cases involving the fundamental 
rights of the individual (the Fourteenth Amendment having made the 
United States the guardian of fundamental rights against infringement 
by the States), regardless of whether the complainant is a citizen of the 
United States, or of the State of which he complains, or whether he is a 
foreigner. He claims these rights simply as a human being, and not as a 
citizen of the United States or of a State. In cases not involving funda- 
mental rights, arising between a State and citizens of another State or 
between citizens of different States, or between a State, or the citizens 
thereof, and foreign states, citizens or subjects, the Supreme Court has 
jurisdiction by virtue of the citizenship of the parties. In this class of 
cases, the individual has rights only as a citizen of a State. 

The truth seems to be that when an individual claims that his funda- 
mental rights have been infringed by a government, whether the govern- 
ment is his own or a foreign one, he appeals neither to international law 
nor to national law, but to a law which is supreme over all peoples and all 
nations, and which grows out of our common human nature and the 
nature of human society. This law no people or nation can ''create"; 
it can only "recognize" it. As respects rights that are not funda- 
mental,— that is, which are artificial or remedial, each individual is 
subject to the rules of international law or of national law according to 
the nature of the case and according to the citizenship of the parties. 



204 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

But as respects his fundamental rights, each individual and each govern- 
ment is subject to the rules of the fundamental and universal law which 
is supreme over both international and national law, and is pervasive 
throughout the whole society of peoples and nations regardless of 
national limits. Though the American people have in fact secured the 
fundamental rights of the individual by our own national law, through 
constitutional prohibitions, we do not regard these fundamental rights 
as created either by our own national law or by international law, but 
by a law universally pervasive and supreme over both, which we ''recog- 
nize," and which we consider that we must recognize on penalty of 
reversion to barbarism. One may adopt the religious hypothesis and 
call this supreme universal law the law of God, or the philosophical 
hypothesis and call it the law of nature, or the juridical hypothesis and 
call it the law of human society. Perhaps the simplest way out of the 
difficulty of determining the source of this law is to regard it as a law 
made by human society as an organized unitary community, and to 
call it "the fundamental law," understanding by this that law which is 
supreme over all other human law, whether international, national or 
municipal, and which deals directly with the rights of the individual man 
as a human being as against all human society. As Bonfils and Fauchille 
say, slavery is abolished everywhere because society in general feels that 
it is in violation of the fundamental rights of the individual merely as a 
human being regardless of his citizenship, and hence destructive of all 
human society. That there are rights of the individual which he has 
merely as a human being and which follow him throughout the world, is. 
proved by the fact that each enlightened human being, if he searches his 
own conscience, finds himself compelled so to believe. The existence of 
this law cannot be proved by ordinary methods of proof. It must be 
accepted as an axiomatic and self-evident truth. 

The supremacy which the American people attribute to the funda- 
mental law is what may be called a limited supremacy — a supremacy 
within a certain definite sphere. Just as the Constitution and laws and 
treaties of the United States are not supreme over the Constitutions and 
laws of the States for all purposes, but only for certain purposes which 
are in fact the general purposes of the Union, so the American people 
must necessarily believe that the public international law is supreme 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 205 

only for the general purposes of the whole international society over 
national constitutions and laws; and so also they must necessarily 
believe the fundamental law is supreme over the public international 
law and all national constitutions and laws only for the still more general 
purpose of securing those fundamental rights of the individual which 
attach to him merely as a human being and not as a citizen of the inter- 
national community or of a particular nation. Thus, according to the 
American view, there are four kinds of supreme law, but the supremacy 
of each is within a certain sphere. There are certain activities and 
relationships of an individual which are necessary to him as a human 
being equally with all other human beings. Questions concerning his 
rights to these activities and relationships, whether the rights are claimed 
against mdividuals or against the government, are to be determined ac- 
cording to the principles of the fundamental law. There are other 
activities and relationships which each mdividual claims and enjoys as a 
citizen of a nation in or against another nation or its citizens. These 
rights are determined by international law. There are still other rights 
which the mdividual claims and enjoys as a citizen of a particular nation 
within the nation. These rights are to be determined by the law of the 
nation of which he is a citizen. In federal states, there are rights which 
the citizen of a state enjoys within a state and which are exclusively 
determined by the law of the state. At present the old rule which made 
all governmental action of cities and towns legally subordmate to the 
governmental action of the state applies, but there are signs that there is 
arising a conception of certam rights which a citizen enjoys as a citizen of 
the city or town. The courts within the United States actually apply 
these principles as a matter of course m their decision of cases. If, under 
the facts of the particular case and the issues formed in the case, the 
fundamental rights of the individual are involved, the constitutional 
prohibitions for the security of fundamental rights are apphed. If, 
under the facts and issues, the rights of the individual as a citizen of a 
nation in or against a foreign nation, or as a citizen of a foreign nation 
against the nation or a State, are involved, the case is decided by mter- 
national law; if the rights of the individual as a citizen of a State agamst 
another State or of citizens of one State against citizens of another are 
involved, the case is determined by the law of the United States; if the 



206 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

rights of the individual as a citizen of a State within the State are in- 
volved, the case is determined by State law. 

This hierarchy of laws springs, as has been seen, from a hierarchy of 
communities. At the top stands all human society regarded as a single 
corporate unit, which is the theoretical legislator of the fundamental 
law under which each individual has certain rights against all other 
individuals and all governments, simply as a human being belonging to 
this society by reason of his creation as a human being. Next comes the 
federalistic organization composed of all the nations of the world — or all 
the civilized nations — regarded as a consociation of nations. This 
consociation is the legislator of international law or the law of the 
society of nations, under which each citizen of a nation has certain 
rights against other nations and their citizens, and rights in the high 
seas and other property common to all the nations. Next come the 
particular nations, each of which is the legislator of its national law under 
which each citizen of the nation has certain rights within the nation. 
In federal states, the nation is the legislator of the national law and the 
State of the State law, and each citizen of a State has certain rights under 
State law within the State, different from his rights as a citizen of the 
nation. 

The doctrine of fundamental rights has, however, no more necessary 
connection with the idea of the federal state or nation than with that of 
the unitary state or nation. It is equally necessary for the people of a 
unitary nation, as for those of a federal one, to recognize the fundamental 
law and to protect the fundamental rights of the individual against all 
other individuals and against all governments by constitutional pro- 
hibitions against certain forms of governmental action. This is evi- 
denced in the United States by the fact that the people of the States 
impose the same prohibitions upon their State governments that the 
people of the United States impose upon the Federal Government. It is 
probably equally true that the idea of a federal state or nation gives rise 
to the idea of a fundamental law of human society as a whole and of 
fundamental rights under this law, and that the idea of fundamental 
rights under a fundamental law made by human society as a whole gives 
rise to the idea of a federal state or nation. But it is also true that a 
people may have an idea of a universal society, of fundamental law and 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 207 

of fundamental rights, without having any experience of a federal state 
or nation, and even though they believe in the unitary rather than the 
federal form of organization. France, with its idea of the rights of man, 
and Great Britain with its idea of fundamental rights derived from the 
constitutional prohibitions upon certain forms of governmental action 
found by experience to be dangerous or destructive to these rights, show 
that the conception of a fundamental law and fundamental rights has no 
necessary connection with the federal form of government. The con- 
stitutional prohibitions adopted by the people of the United States in the 
Constitutional Bill of Rights are in fact collated from Magna Charta, 
from the English Petition of Right, from the English Habeas Corpus 
Act, and from the English Bill of Rights, as these were developed in the 
Massachusetts Body of Liberties, in the Virginia Declaration of Rights 
and in the original Constitutions of the States of the American 

Union. 

The real difference between the United States and other nations is 
thus not so much one of the philosophy of government, as of the system 
which we apply to make the fundamental law and the fundamental 
rights of the individual practical and effective. No other nation imposes 
constitutional prohibitions for the protection of these rights upon all its 
governments and all their branches and makes these prohibitions the 
most fundamental part of the supreme law of the land so as to make the 
courts the guardians of these fundamental rights. Though we may 
believe that this system is not perfect, it has the tremendous advantage 
of keeping the conception of fundamental law and fundamental rights 
alive in the minds and consciences of the people. The knowledge that 
the most insignificant individual may call to his aid the protection of the 
courts against the acts of his State legislature and even against the acts of 
the national Congress if these acts violate these fundamental constitu- 
tional prohibitions, dignifies the individual and keeps before the mind 
of all the people the moral worth of each human being simply as a human 
being, a creation of God, and a member of human society. It dignifies 
government by enabling the people to regard it in its proper aspect as 
an agency of the people having for the sole object of its institution the 
welfare and development of the individual. It compels the public official 
to exercise his power by judgment, since he is obliged in each case to 



208 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

decide before he acts whether he is acting within the jurisdiction assigned 
to him as an agent of the people to secure fundamental rights. There is 
no particular virtue in written constitutions in so far as they merely 
determine the frame of organization of the government and the dis- 
tribution of functions between the different branches of the govern- 
ment and the different corporate members of the nation. Their virtue 
lies in the possibiUty of establishing, by means of them, constitutional 
prohibitions for the protection of the fundamental rights of the indi- 
vidual, and of making these prohibitions the fundamental part of the 
supreme law of the land. The limitations of power as between the 
different branches of government and the different corporate members 
of the nation may be established under unwritten constitutions, but the 
limitations of the power of a government as between itself and the 
individual can only be effectively established by a written constitution 
enacted by the people, in which are inserted constitutional prohibitions 
for the protection of the fundamental rights, which are by the people 
declared to be the fundamental part of the supreme law of the land, and 
which are interpreted and applied by the courts, subject perhaps to 
revision, in extraordinary cases, by an extraordinary tribunal estab- 
lished for the purpose. 

It is because the people of the United States believe that they have a 
peculiar system of government which is essential not only to their own 
liberty and their own society, but to individual liberty and human 
society everywhere, and which they hold in trust for civilization, that 
they feel it their duty to protect their philosophy and their govern- 
mental system from such contact with other systems as might endanger 
its existence. This was the original basis of the Monroe Doctrine, and 
still continues to be its true basis. The belief in the fundamental rights 
of the individual which we hold, destroys all motive for conquest, since 
the only effect of conquest by us is to place upon us the difficult task of 
securing the fundamental rights of the individual in the countries an- 
nexed. We welcome the independence of nations which accept our 
philosophy and which honestly recognize the fundamental law and do 
their utmost to preserve fundamental rights. The rights of intervention 
in the affairs of the South American Republics, for the purpose of con- 
trolling them in the interest of Europe, was claimed in 1823 by the 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 209 

allied powers of Continental Europe as a logical result of their political 
philosophy and system. President Monroe declared that "the political 
system of the allied Powers is essentially different in this respect from 
that of America" and that ''this difference proceeds from that which 
exists in their respective governments." Asserting that "to the defense 
of our own system, which has been achieved by the loss of so much blood 
and treasure, and matured by the wisdom of their most enlightened 
citizens, this whole nation is devoted," he concluded that we owed it "to 
candor, and to the amicable relations existing between the United 
States and those Powers, to declare that we should consider any at- 
tempt on their part to extend their system to any part of this hemisphere 
as dangerous to our peace and safety." 

The whole effect of the Monroe Doctrine was that the American 
people were determined that their philosophy and their system should 
have every chance of surviving in the competition of philosophies 
and systems to which it could reasonably be thought to be entitled. 
The philosophy of government then prevailing in Continental Europe 
denied the fundamental rights of the individual and asserted that all 
rights of men were created by the nation. The republics of Central and 
South America having established themselves and having nominally 
accepted the American philosophy of government and to some extent 
the American system, the United States asserted that the people of these 
nations should be free to develop themselves, hoping and believing that 
in the course of time they would fully accept the American philosophy 
of government and apply it effectively in their national affairs. The 
Monroe Doctrine is thus a doctrine of freedom. It had its origin in a 
conflict of philosophies. It had for its purpose the protection of the 
Central and South American Republics in developing and working out a 
philosophy and system which they had freely chosen. The Monroe 
Doctrine will die when nations of the world accept the belief in the 
fundamental rights of the individual and make these rights practical and 
effective; for by the acceptance of this belief and by the adoption of a 
practical' system in accordance with this belief, all motive for conquest 
ceases, and nations will refrain from interfering in the internal affairs of 
other nations, since intervention will carry with it the heavy respon- 
sibility of securing the fundamental rights of the people of the invaded 



210 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

country, without possibility of great gains, and with only an uncertain 
compensation. 

The fact that the American people hold this philosophy of govern- 
ment in which the securing of the fundamental rights of the individual is 
regarded as the object for which all government is instituted among 
men, profoundly affects the attitude which American statesmen must 
take in respect to every question growing out of our foreign as well as 
our domestic relations. The officials of our Department of Foreign 
Affairs — which for historical reasons we call the Department of State — as 
well as our diplomatic officials, accustomed to regard the fundamental 
rights of the individual as the matter of prime importance, inevitably and 
properly apply our own constitutional tests to all proposals for joint 
action between the United States and any other nation, in the solution 
of questions arising between this nation and any other. To them the old 
conception of sovereignty, as a power of each nation to do what it wills, 
is impossible, since our philosophy compels us to hold that all national, 
action is limited by the fundamental law. 

The American philosophy and system of government — or more 
properly, the failure of other nations to accept our philosophy and 
system — particularly stands in the way of international arbitration and 
the judicial settlement of international disputes. With the drawing 
together of the whole world by the increased facilities for travel and 
communication, disputes tend more and more to be between an indi- 
vidual and a government or some branch of it. In every case of this 
kind there is a possibility that the question of the fundamental rights of 
the individual may be involved, so that in a similar case arising in the 
United States, the constitutional prohibitions for the protection of 
fundamental rights would be applied by the courts and the govern- 
mental action in question might be nullified. In this class of cases, when 
the United States is asked to submit to arbitration or judicial settlement, 
a grave difficulty arises. Inasmuch as the peoples of foreign nations do 
not impose constitutional prohibitions on their governments for the 
protection of fundamental rights and do not make these prohibitions the 
fundamental law of the land, the courts and the lawyers of European 
countries are not accustomed to issues being raised concerning the 
validity of acts of government as respects fundamental rights. As it is 



THE AMERICAN PHILOSOPHY OF GOVERNMENT 211 

necessary that European jurists should be in the majority on most 
arbitral or judicial tribunals in international cases, it follows that these 
tribunals are likely to treat some governmental acts as valid which we 
would hold invalid and nullify as infringing fundamental rights. Thus 
the United States must, for the protection and preservation of its own 
philosophy and system, refrain from submitting to the decision of such 
a tribunal any case which, if arising within the United States, would be 
considered as involving the fundamental rights of the individual under 
our constitutional prohibitions. So long as this difference in philosophies 
and systems continues, the only hope for the extension of international 
arbitration or judicial settlement would seem to be in making all action 
of international arbitral or judicial tribunals advisory to the nations 
which are the parties. This would permit these nations themselves to 
review the decision from every standpoint and to protect their own 
philosophies and systems. Acceptance of a decision by the parties would 
greatly increase its weight as a precedent for other nations, and would 
insure the execution of the decision by the defeated party. 

The American philosophy of government also stands in the way of the 
codification of international law. No American can, consistently with 
his own fundamental beliefs, subscribe to a code of international law 
which does not contain constitutional prohibitions forbidding to all 
peoples, nations and governments certain forms of action dangerous to 
or destructive of fundamental rights, and which does not make these 
constitutional prohibitions fundamental and supreme over all inter- 
national and national law. 

The United States is therefore at the present time in one sense a dis- 
turbing factor in the councils of the nations. Its disturbance is not of a 
physical kind, but of an intellectual and spiritual kind. It brings to the 
discussion of all international questions ideas of universal law, of fun- 
damental rights of the individual as a created human being, of practical 
protection of these rights through constitutional prohibitions on all 
governments, based on popular and national recognition of fundamental 
law. To some these ideas may seem to be destructive, but they are 
really in the highest sense conservative and constructive; for the recog- 
nition of the rights of man is in no sense inconsistent with the recogni- 
tion of the rights of nations. The American philosophy equally recog- 



212 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 

nizes the rights of man and the rights of nations, holding that society 
can exist only through local organization, and that nations acting inde- 
pendently, but in concert, are the most appropriate means of securing 
the individual in his fundamental rights and in aiding him to extend his 
powers over nature. 

The philosophy of the United States makes for peace. The wars 
which the United States has fought have all been for the purpose of 
protecting the fundamental rights of the individual and maintaining the 
nation as the guardian of these rights. There can be no true peace except 
where the individual has his fundamental rights, and where these rights 
are secured to him by the power of a nation. It is unlikely that the 
United States will ever apply physical force externally in the future 
except for the same purposes for which it has waged wars in the past. 
Such protective and defensive action its philosophy permits and in 
some cases demands. 

Alpheus Henry Snow. 



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